HomeMy WebLinkAboutOrdinance No. 20341 COUNCIL ORDINANCE NUMBER 20341
COUNCIL BILL NUMBER 4896
AN OPJ~INANCE CONCERNING PUBLIC
CONTRACTING; ADDING SECTIONS 2~1400,
2.1405, 2.t410, 2.14~15,2.1420, 2.1425, 2.1430,
2.1435, 2.14~, 2.1445, AND 2.1450 TO THE
EUGENE CODE, 1971; REPEALING SECTIONS
2.1200, 2.1205, 2.1210, 2.1215, 2.1220, 2.1225,
2.1230, 2.1240, 2.1245, 2.1250, AND 2.1255 OF
THAT CODE; DECLARING ~J'~ EMERGENCY; AND
PROVIDING AN EFFECTIVE DATE.
ADOPTED: February 28, 2005
PASSED: 7R
REJECTED:
OPPOSED:
ABSENT: Pap~
EFFECTIVE: Immediately (March 1, 2005)
ORDINANCE NO, 20341
AN ORDINANCE CONCERNING PUBLIC CONTRACT]NG; ADDING
SECTIONS 2.i400, 2.i405, 2.i4i0, 2.i4i5, 2.i420, 2~i425, 2.i430,
2.1435, 2.1440, 2.1445, AND 2.1450 TO THE EUGENE CODE, 1971;
REPEALING SECTIONS 2.1200, 2.1205, 2.1210, 2.1215, 2.1220, 2.1225,
2.1230, 2.1240, 2.1245, 2.1250, AND 2.1255 OF THAT CODE;
DECLARING AN EMERGENCY; AND PROVIDING AN EFFECTIVE
DATE.
THE CiTY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1. Sections 2.1400, 2.1405, 2.1410, 2.1415, 2.1420, 2.1425, 2.1430,
2.1435, 2~1440, 2.1445, and 2.1450 are hereby added to the Eugene Code, 1971, to
provide:
2.1400 Public Contracts - City Policy.
(1) Short Tit~e. The provisions of sections 2.1400 to 2.1450 of this code,
and all administrative rules adopted thereunder may be cited as the City
of Eugene Public Contracting Regulations.
(2) Purpose. it is the policy of the city in adopting public contracting
regulations to utilize public contracting practices and methods that
maximize the efficient use of public resources and the purchasing power
of public funds by:
(a) Promoting impartial and open competition;
(b) Using solicitation materials that are complete and contain a clear
statement of contract specifications and requirements; and
(c) Taking full advantage of evolving procurement methods that suit
the contracting needs of the city as they emerge within various
industries.
Interpretation. In furtherance of the purpose of the objectives set forth
in subsection (2), it is the city's intent that sections 2.1400 to 2.1450 be
interpreted to authorize the full use of all contracting powers and
authorities described in ORS Chapters 279A, 279B and 279C.
2,1405 Public Contracts - Exemption from Public Contractinq Regulations. The
City of Eugene Public Contracting Regulations apply to all public contracts of
the city except for the classes of contracts that are declared exempt from the
Oregon Public Contractin9 Code, which shall be set forth in the rules adopted
by the purchasing agent.
2.1410 Public Contracts - Reclulation by City Council. Except as expressly
delegated under sections 2.1400 to 2.1450, the city council reserves to itself
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the exercise of all of the duties and authority of a contract review board under
state law, including, but not limited to, the power and authority to:
(1) Solicitation Methods Applicable to Contracts. Approve the use of
contracting methods and exemptions from contracting methods for a
specific contract or certain classes of contracts;
(2) Brand Name Specifications. Exempt the use of brand name
specifications for public improvement contracts;
(3) Waiver of Performance and Payment Bonds, Approve the partial or
complete waiver of the requirement for the delivery of a performance or
payment bond for construction of a public improvement other than in
cases of emergencies;
(4) Electronic Advertisement of Public Contracts. Authorize the use of
electronic advertisements for public contracts in lieu of publication in a
newspaper of general circulation; and
(5) Appeals of Debarment and Prequalification Decisions. Hear
properly filed appeals of the purchasing agent's determination of
debarment, or concerning prequalification.
2.1415 Public Contracts - Authority of Purchasinq Aqent.
(1) General Authority. The city manager shall be the purchasing agent for
the city and is hereby authorized to award all city contracts for which
there is an appropriation. Subject to the provisions of sections 2.1400 to
2.1450 of this code, the purchasing agent may adopt and amend all
rules, regulations, procedures and forms required or permitted to be
adopted by contracting agencies under the Oregon Public Contracting
Code or otherwise convenient for the city's contracting needs. Without
limiting the generality of the foregoing, the purchasing agent shall adopt
public contracting rules for the award of personal services contracts and
concession agreements and shall hear all solicitation and award
protests.
(2) Standards for Contracting Rules. When adopting public contracting
rules, the purchasing agent shall establish practices and procedures that:
(a) Do not encourage favoritism or substantially diminish competition;
(b) Allow the city to take advantage of the cost-saving benefits of
alternative contracting methods and practices;
(c) Give preference to goods and services that have been
manufactured or produced in the State of Oregon if price, fitness,
availability and quality are otherwise equal;
(d) Give preference to goods that are certified to be made from
recycled products when such goods are available, can be
substituted for non-recycled products without a loss in quality, and
the cost of goods made from recycled products is not significantly
more than the cost of goods made from non-recycled products; and
(e) Establish purchasing practices that assure, to the maximum extent
economically feasible, purchase of materials, goods and supplies
that may be recycled or reused when discarded.
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(3) Delegation of Authority, Any of the responsibilities or authorities of the
purchasing agent under Sections 2.1400 to 2.1450 of this code may be
delegated and sub-delegated by administrative order.
(4) Mandatory Review of Rules, Whenever the Oregon State Legislative
Assembly enacts laws that cause the attorney general to modify its
model rules, the purchasing agent shall review the city's public
contracting regulations to determine whether any modifications to the
regulations need to be adopted by the city to ensure compliance with
statutory changes.
2~1420 Public Contracts - Definitions. The following terms used in sections
2.1400 to 2.1450 shall have the meanings set forth below.
Bid, A binding, sealed written offer to provide goods, services or public
improvements for a specified price or prices.
Concession agreement. A contract that authorizes and requires a private
entity or individual to promote or sell, for its own business purposes, specified
types of goods or services from real property owned or managed by the city,
and under which the concessionaire makes payments to the city based, at
least in part, on the concessionaire's revenues or sales. The term "concession
agreement" does not include a mere rental agreement, license or lease for the
use of premises.
Contract price, The total amount paid or to be paid under a contract,
including any approved alternates, and any fully executed change orders or
amendments.
Contract review board. The city council.
Cooperative procurement, A procurement conducted by or on behalf of
more than one contracting agency.
Debarment. A declaration by the purchasing agent under ORS 279B.130 or ORS
279C.440 that prohibits a potential contractor from competing for the city's public
contracts for a prescribed period of time.
Disposal, Any arrangement for the transfer of property by the city under which
the city relinquishes ownership.
Emergency. Circumstances that create a substantial risk of loss, damage or
interruption of services or a substantial threat to property, public health,
welfare or safety; and require prompt execution of a contract to remedy the
condition.
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Energy savings performance contract. A contract with a qualified energy
service company for the identification, evaluation, recommendation, design
and construction of energy conservation measures that guarantee energy
savings or performance.
Findings. The statements of fact that provide justification for a
determination. Findings may include, but are not limited to, information
regarding operation, budget and financial data; public benefits; cost savings;
competition in public contracts; quality and aesthetic considerations, value
engineering; specialized expertise needed; public safety; market conditions;
technical complexity; availability, performance and funding sources.
Goods~ Includes any item or combination of supplies, equipment materials or
other personal property, including any tangible, intangible and intellectual
property and rights and licenses in relation thereto.
Informal solicitation. A solicitation made in accordance with rules adopted
by the purchasing agent to a limited number of potential contractors, in which
the solicitation agent attempts to obtain at least three quotes or proposals.
Invitation to bid. A publicly advertised request for competitive sealed bids.
Offeror. A person who submits a bid, quote or proposal to enter into a public
contract with the city.
Oregon Public Contracting Code. ORS chapters 279A, 279B and 279C.
Person, A natural person or any other private or governmental entity, having
the legal capacity to enter into a binding contract.
Proposal. A binding offer to provide goods, services or public improvements
with the understanding that acceptance will depend on the evaluation of
factors other than, or in addition to price. A proposal may be made in
response to a request for proposals or under an informal solicitation.
Personal services contract. A contract with an independent contractor
predominantly for services that require special training or certification, skill,
technical, creative, professional or communication skills or talents, unique
and specialized knowledge, or the exercise of judgment skills, and for which
the quality of the service depends on attributes that are unique to the service
provider. Such services include, but are not limited to the services of architects,
engineers, land surveyors, attorneys, auditors and other licensed professionals,
artists, designers, computer programmers, performers, consultants and property
managers. The purchasing agent shall have discretion to determine whether
additional types of services not specifically mentioned in this paragraph fit
within the definition of personal services.
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Public contract. A sale or other disposal, or a purchase, lease, rental or
other acquisition by the city of personal property, services, including personal
services, public improvements, public works, minor alterations, or ordinary
repair or maintenance necessary to preserve a public improvement.
Public improvement. A project for construction, reconstruction or major
renovation on real property by or for the city. "Public improvement" does not
include:
(a) Projects for which no funds of the city are directly or indirectly used,
except for participation that is incidental or related primarily to project
design or inspection; or
(b) Emergency work, minor alteration, ordinary repair or maintenance
necessary to preserve a public improvement.
Purchasing agent. The city manager or a designee appointed by the city
manager to exercise the authority of the purchasing agent under the city's
public contracting regulations.
Quote. A price offer made in response to an informal or qualified pool
solicitation to provide goods, services or public improvements.
Request for proposals. A publicly advertised request for sealed competitive
proposals.
Services. Includes all types of services (including construction labor) other
than personal services.
Solicitation. An invitation to one or more potential contractors to submit a
bid, proposal, quote, statement of qualifications or letter of interest to the city
with respect to a proposed project, procurement or other contracting
opportunity. The word "solicitation" also refers to the process by which the
city requests, receives and evaluates potential contractors and awards public
contracts.
Solicitation agent. With respect to a particular solicitation or contract, the
city manager or employee delegated responsibility for conducting the
solicitation and awarding the contract.
Solicitation documents. Includes all informational materials issued by the
city for a solicitation, including, but not limited to advertisements, instructions,
submission requirements and schedules, award criteria, contract terms and
specifications, and all laws, regulations and documents incorporated by
reference.
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Surplus property, Personal property owned by the city which is no longer
needed for use by the department to which such property has been assigned.
Telecommunication services. Two way switched access and transport of
voice communications but does not include: (a) services provided by radio
common carrier, (b) one-way transmission of television signals, (c) surveying,
(d) private telecommunication networks, or (e) communications of the city
which take place on the city's side of on-premises equipment.
2/1425 Public Contracts ~ Process for Approval of Special Solicitation I~ethods
and Exemptions.
(1) Authority of City Council. In its capacity as contract review board for
the city, the city council, upon its own initiative, or upon request of the
purchasing agent, may create special selection, evaluation and award
procedures for, or may exempt from competition, the award of a specific
contract or class of contracts as provided in this section 2.1425.
(2) I~asis for Approval. The approval of a special solicitation method or
exemption from competition must be based upon a record before the city
council that contains findings to support the reason that approval of the
request would be unlikely to encourage favoritism or diminish
competition for the public contract or class of public contracts, or would
otherwise substantially promote the public interest in a manner that
could not practicably be realized by complying with the solicitation
requirements that would otherwise be applicable under these
regulations. In making a determination regarding a special selection
method, the city council may consider the type, cost, amount of the
contract or class of contracts, number of persons available to make
offers, and such other factors as it may deem appropriate.
(3) Hearing.
(a) The city shall approve the special solicitation or exemption after a
public hearing before the city council following notice by publication
in at least one newspaper of general circulation in the Eugene/
Springfield metropolitan area at least 7 days prior to the hearing.
(b) At the public hearing, the city shall offer an opportunity for any
interested party to appear and present comment.
(c) The city council shall consider the findings, any comments or
testimony presented at the hearing, and may approve the
exemption as proposed or as modified by the council in response
to the comments received.
(4) Special Requirements for Public Improvement Contracts.
(a) Notification of the public hearing shall be published in a trade
newspaper of general statewide circulation at least 14 days prior to
the hearing.
(b) The notice shall state that the public hearing is for the purpose of
taking comments on the city's draft findings for an exemption from
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the standard solicitation method. At the time of the notice, copies
of the draft findings shall be made available to the public.
(5) Commencement of Solicitation Prior to Approval. A solicitation may
be issued prior to the approval of a special exemption under this section
2.1425, provided that the closing of the solicitation may not be earlier
than 5 days after the date of the hearing at which the city council
approves the exemption. If the city council fails to approve a requested
exemption, or requires the use of a solicitation procedure other than the
procedures described in the issued solicitation documents, the issued
solicitation may either be modified by addendum, or canceled.
2,1430 Public Contracts - Solicitation Methods for Classes of Contracts. The
following solicitation methods and the classes of contracts that may be
awarded under such methods are hereby established by the city council.
(1) Purchases from Nonprofit Agencies for Disabled individuals, When
available, the city shall purchase goods, services and public
improvements from qualified nonprofit agencies for disabled individuals
in accordance with the provisions of ORS 279.835 through 279.850 and
rules adopted by the purchasing agent.
(2) Public improvement Contracts.
(a) Any public improvement. Unless otherwise provided in these
regulations or approved for a special exemption, public
improvement contracts in any amount may be issued under an
invitation to bid.
(b) Non-transportation public improvements up to $100,000. Public
improvement contracts other than contracts for a highway, bridge
or other transportation project for which the estimated contract
price does not exceed $100,000 may be awarded using an informal
solicitation for quotes in accordance with rules adopted by the
purchasing agent,
(c) Transportation public improvements up to $50,000. Contracts for
which the estimated contract price does not exceed $50,000, for
highways, bridges or other transportation projects may be awarded
using an informal solicitation for quotes in accordance with rules
adopted by the purchasing agent.
(d) Public improvements up to $5,000. Contracts for public
improvements for up to $5,000 are not subject to competitive
solicitation requirements and may be awarded in any manner
provided by the purchasing agent's rules and, subject to rules
adopted by the purchasing agent, may be awarded at the discretion
of the solicitation agent.
(e) City funded privately-constructed public improvements. The city
may contribute funding to a privately constructed public
improvement project (commonly known as a "PEPI") without
subjecting the project to competitive solicitation requirements if al~
Ordinance - 7
of the following conditions are met with respect to the entire public
improvement project:
1. The city's contribution to the project may not exceed 25% of
the total cost of the project;
2. The city must comply with all applicable laws concerning the
reporting of the project to the Bureau of Labor and Industries
as a public works project;
3. The general contractor for the project must agree in writing to
comply with all applicable laws concerning reporting and
payment of prevailing wages for the project;
4. The funds contributed to the project may not provide a
pecuniary benefit to the owner of the development for which
the project is being constructed, other than benefits that are
shared by all members of the community;
5. The performance of the general contractor and the payment of
labor for the project must be secured by performance and
payment bonds or other cash-equivalent security that is
acceptable to the purchasing agent to protect the city against
defective performance and claims for payment, unless the
city's obligation to make a payment is conditioned upon final
completion of the public improvement and proof of, or security
for payment that is acceptable to the purchasing agent; and,
The contract for construction of the project must be amended,
as necessary, to require the general contractor to maintain
adequate workers compensation and liability insurance and to
protect and provide indemnification to the city for all claims for
payment, injury or property damage arising from or related to
the construction of the project.
(3) Persona~ Services Contracts. The purchasing agent shall adopt such
rules for the selection and award of contracts for personal services as
the purchasing agent, in his or her sole discretion deems appropriate.
(4) Hybrid Contracts. The following classes of contracts include elements
of construction of public improvements as well as personal services and
may be awarded under a request for proposals, unless exempt from
competitive solicitation.
(a) Design/build and CM/GC contracts. Contracts for the construction
of public improvements using a design/build or construction
managedgeneral contractor construction method shall be awarded
under a request for proposals. The determination to construct a
project using a design/build or construction managedgeneral
contractor construction method must be approved by the city
manager or the city manager's designee, upon application of the
solicitation agent, in which the solicitation agent submits facts that
support a finding that the construction of the improvement under
the proposed method is likely to result in cost savings, higher
quality, reduced errors, or other benefits to the city.
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(b) Enerqv savings performance contracts. Unless the contract
qualifies for award under another classification in this section
2.1430, contractors for energy savings performance contracts shall
be selected under a request for proposals.
(5) Contracts for Goods and Services,
(a) Any procurement. The procurement of goods or services, or
goods and services in any amount may be made under either an
invitation to bid or a request for proposals.
(b) Procurements up to $150,000. The procurement of goods or
services, or goods and services, for which the estimated contract
price does not exceed $150,000 may also be made under an
informal solicitation for either quotes or proposals.
(6) Contracts Subject to Award at Solicitation Agent's Discretion.
Subject to regulation under rules adopted by the purchasing agent, the
following classes of contracts may be awarded in any manner which the
solicitation agent deems appropriate to the city's needs, including by
direct appointment or purchase.
(a) Advertisinq. Contracts for the placing of notice or advertisements
in any medium.
(b) Amendments. Contract amendments shall not be considered to be
separate contracts if made in accordance with rules adopted by the
purchasing agent.
(c) Animals. Contracts for the purchase of animals.
(d) Contracts up to $5,000. Contracts of any type for which the
contract price does not exceed $5,000 may be awarded and
amended as provided in rules adopted by the purchasing agent.
(e) Copvd,qhted and library materials. Contracts for the acquisition of
materials entitled to copyright, including, but not limited to, works of
art and design, literature, music and library lending materials.
(f) Equipment repair. Contracts for equipment repair or overhauling,
provided the service or parts required are unknown and the cost
cannot be determined without extensive preliminary dismantling or
testing.
(9) Goods for resale. Contracts for goods purchased for resale to
consumers,
(h) Government re,qulated items. Contracts for the purchase of items
for which prices or selection of suppliers are regulated by a
governmental authority.
(i) Insurance. Insurance and service contracts as provided for under
ORS 414.115,414.125, 414.135 and 414.145,
(j) Non-owned property. Contracts or arrangements for the sale or
other disposal of used abandoned property or other personal
property not owned by the city,
(k) Renewals. Contracts that are being renewed in accordance with
their terms are not considered to be newly issued contracts and are
not subject to competitive procurement procedures.
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(I) Sole source contracts. Contracts for goods or services which are
available from a single source may be awarded without
competition. The purchasing agent shall adopt rules under which a
determination of sole source availability may be made.
(m) Sponsorship agreements. Sponsorship agreements, under which
the city receives a gift or donation in exchange for recognition of
the donor.
(n) Structures. Contracts for the disposal of structures located on city-
owned property, other than structures suitable for residential use.
(o) Temporary extensions or renewals. Contracts for a single period
of one year or less, for the temporary extension or renewal of an
expiring and non-renewable, or recently expired, contract, other
than a contract for public improvements.
(p) Temporary use of city-owned property. The city may negotiate and
enter into a license, permit or other contract for the temporary use
of city-owned property without using a competitive selection
process if:
1. The contract results from an unsolicited proposal to the city
based on the unique attributes of the property or the unique
needs of the proposer;
2. The proposed use of the property is consistent with the city's
use of the property and the public interest; and
3. The city reserves the right to terminate the contract without
penalty, in the event that the city determines that the contract
is no longer consistent with the city's present or planned use
of the property or the public interest.
(q) Used property. A solicitation agent, for procurements up to
$20,000, and the purchasing agent, for procurements in excess of
$20,000 may contract for the purchase of used property by
negotiation if such property is suitable for the city's needs and can
be purchased for a lower cost than substantially similar new
property. For this purpose the cost of used property shall be based
upon the life-cycle cost of the property over the period for which the
property will be used by the city. A record shall be made of the
findings that support any purchase over $10,000.
(r) Utilities. Contracts for the purchase of steam, power, heat, water,
telecommunications services, and other utilities, including in-kind
telecommunications services pursuant to EC 3.415(6).
(7) Contracts Required by Emergency Circumstances,
(a) In general. When the purchasing agent determines that immediate
execution of a contract is necessary to prevent substantial damage
or injury to persons or property, the city may execute the contract
without competitive selection and award. The solicitation agent
shall document the nature of the emergency; the method used for
selection of the particular contractor and the reason why the
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selection method was deemed in the best interest of the city and
the public.
(b) Emergency public improvement contracts. A public improvement
contract may only be awarded under emergency circumstances if
the purchasing agent has made a written declaration of emergency.
The purchasing agent shall notify the city council of the declaration
of emergency, if made, and the facts and circumstances
surrounding the emergency execution of the contract, as soon as
possible, in light of the emergency circumstances. Any public
improvement contract awarded under emergency conditions must
be awarded within 60 days following the declaration of an
emergency unless the city council grants an extension of the
emergency period. When the delay required to obtain a payment
or performance bond would result in injury or substantial property
damage, the purchasing agent may waive, wholly or in part, the
requirement for a payment or performance bond.
(8) Federal Purchasing Programs. Goods and services may be
purchased without competitive procedures under a local government
purchasing program administered by the United States General Services
Administration ("GSA") in accordance with rules adopted by the
purchasing agent.
(9) Cooperative Procurement Contracts, Cooperative procurements may
be made without competitive solicitation as provided in the Oregon
Public Contracting Code and under rules adopted by the purchasing
agent.
(10) Surplus Property. The purchasing agent shall adopt rules for the
disposal of all surplus property. The purchasing agent's rules shall
include rules under which nonprofit corporations may lease or purchase
structures suitable for use as residential buildings that are declared
surplus property and must be removed from dty-owned property. The
rules shall give preferences to nonprofit corporations who will use the
structure to provide housing for persons of Iow income, or who are
otherwise disadvantaged.
(11) Concession Agreements. The purchasing agent shall adopt ru~es for
the award of concession agreements.
2.1435 Public Contracts - Use of Brand Name Specifications for Public
Improvements.
(1) In General. Specifications for contracts shall not expressly or implicitly
require any product by one brand name or mark, nor the product of one
particular manufacturer or seller, except for the following reasons:
(a) It is unlikely that such exemption will encourage favoritism in the
awarding of public improvement contracts or substantially diminish
competition for public improvement contracts; or
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(b) The specification of a product by brand name or mark, or the
product of a particular manufacturer or seller, would result in
substantial cost savings to the city; or
(c) There is only one manufacturer or seller of the product of the
quality required; or
(d) Efficient utilization of existing equipment, supplies requires the
acquisition of compatible equipment or supplies.
(2) Authority of Purchasing Agent. The purchasing agent sha~l have
authority to determine whether an exemption for the use of a specific
brand name specification should be granted by recording findings that
support the exemption based on the provisions of subsection (1)~
(3) Brand Name or Equivalent. Nothing in this section 2.1435 prohibits
the city from using a "brand name or equivalent" specification, from
specifying one or more comparable products as examples of the quality,
performance, functionality or other characteristics of the product needed
by the city, or from establishing a qualified product list under ru~es
adopted by the purchasing agent.
2.1440 Public Contracts - Bid, Performance and Payment Bonds.
(1) Solicitation Agent May Require Bonds. The solicitation agent may
require bid security and a good and sufficient performance and payment
bond even though the contract is of a class that is exempt from the
requirement under this section 2.1440.
(2) Bid/Proposal Security. Except as otherwise exempted, the invitation to
bid or request for proposals for all contracts that include the construction
of a public improvement shall require bid or proposal security.
(3) Performance Bonds.
(a) General. Except as provided in sections 2.1400 to 2.1450 of this
code, all public contracts are exempt from the requirement for the
furnishing of a performance bond.
(b) Contracts involving public improvements. Prior to executing a
contract for more than $50,000 that includes the construction of a
public improvement, the contractor must deliver a performance
bond in an amount equal to the full contract price conditioned on
the faithful performance of the contract in accordance with the
plans, specifications and conditions of the contract, The
performance bond must be solely for the protection of the city and
any public agency that is providing funding for the project for which
the contract was awarded.
(c) Cash-in-lieu. The purchasing agent may permit the successful
offeror to submit a cashier's check or certified check in lieu of all or
a portion of the required performance bond.
(4) Payment Bonds.
(a) General. Except as provided in sections 2.1400 to 2.1450 of this
code, all public contracts are exempt from the requirement for the
furnishing of a payment bond.
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(b) Contracts involving public improvements. Prior to executing a
contract for more than $50,000 that includes the construction of a
public improvement, the contractor must deliver a payment bond
equal to the full contract price, solely for the protection of claimants
under ORS 279C.600.
(5) Design/Build Contracts, If the public improvement contract is with a
single person to provide both design and construction of a public
improvement, the obligation of the performance bond for the faithful
performance of the contract must also be for the preparation and
completion of the design and related services covered under the
contract. Notwithstanding when a cause of action, claim or demand
accrues or arises, the surety is not liable after final completion of the
contract, or longer if provided for in the contract, for damages of any
nature, economic or otherwise and including corrective work, attributable
to the design aspect of a design-build project, or for the costs of design
revisions needed to implement corrective work.
(6) Construction ManagedGeneral Contractor Contracts, If the public
improvement contract is with a single person to provide construction
manager and general contractor services, in which a guaranteed
maximum price may be established by an amendment authorizing
construction period services following preconstruction pedod services,
the contractor shall provide the bonds required by subsection (1) of this
section upon execution of an amendment establishing the guaranteed
maximum price. The city shall also require the contractor to provide
bonds equal to the value of construction services authorized by any
eady work amendment in advance of the guaranteed maximum price
amendment. Such bonds must be provided before construction starts.
(7) Surety; Obligation. Each performance bond and each payment bond
must be executed solely by a surety company or companies holding a
certificate of authority to transact surety business in Oregon. The bonds
may not constitute the surety obligation of an individual or individuals.
The performance and payment bonds must be payable to the city or to
the public agency or agencies for whose benefit the bond is issued, as
specified in the solicitation documents, and shall be in a form approved
by the purchasing agent.
(8) Emergencies. In cases of emergency, or when the interest or property
of the city probably would suffer material injury by delay or other cause,
the requirement of furnishing a good and sufficient performance bond
and a good and sufficient payment bond for the faithful performance of
any public improvement contract may be excused, if a declaration of
such emergency is made in accordance with the provisions of section
2.1430(7)(c), unless the city council requires otherwise.
2.1445 Public Contracts - Electronic Advertisement of Public Contracts, In lieu
of publication in a newspaper of general circulation in the Eugene/Springfield
metropolitan area, the advertisement for an invitation to bid or request for
Ordinance
proposals for a contract may be published electronically by posting on the
city's website, provided that the following conditions are met:
(1) The placement of the advertisement is on a location within the website
that is maintained on a regular basis for the posting of information
concerning solicitations for projects of the type for which the invitation to
bid or request for proposals is issued; and
(2) The solicitation agent determines that the use of electronic publication
will be at least as effective in encouraging meaningful competition as
publication in a newspaper of general circulation in the Eugene/
Springfield metropolitan area and will provide costs savings for the city,
or that the use of electronic publication will be more effective.
2J450 Public Contracts - Appeal of Debarment or Preclualification Decision.
(~t)Right to Hearing. Any person who has been debarred from competing
for city contracts or for whom prequalification has been denied, revoked
or revised may appeal the city's decision to the city council as provided
in this section 2.1450.
(2) Filing of Appeal. A written notice of appeal must be filed with the city's
purchasing agent within three business days after the person's receipt of
the notice of the determination of debarment, or denial of
prequalification.
(3) Notification of City Council. Immediately upon receipt of such notice
of appeal, the purchasing agent shall notify the city council of the
appeal.
(4) Hearing. The procedure for appeal from a debarment or denial,
revocation or revision of prequalification shall be as follows:
(a) Promptly upon receipt of notice of appeal, the city shall notify the
appellant of the time and place of the hearing;
(b) The city council shall conduct the hearing and decide the appeal
within 30 days after receiving notice of the appeal from the
purchasing agent; and
(c) At the hearing, the city council shall consider de novo the notice of
debarment, or the notice of denial, revocation or revision of
prequalification, the standards of responsibility upon which the
decision on prequalification was based, or the reasons listed for
debarment, and any evidence provided by the parties. The
standards of responsibility as defined in the Oregon Public
Contracting Code shall be set forth in the rules adopted by the
purchasing agent.
(5) Decision. The city council shall set forth in writing the reasons for the
decision.
(6) Costs. The city council may allocate the city council's costs for the
hearing between the appellant and the city. The allocation shall be
based upon facts found by the city council and stated in the city council's
decision that, in the city council's opinion, warrant such allocation of
costs. If the city council does not allocate costs, the costs shall be paid
Ordinance
by the appellant, if the decision is upheld, or by the city, if the decision is
over-turned.
(7) Judicial Review. The decision of the city council may be reviewed only
upon a petition in the circuit court of Lane County filed within 15 days
after the date of the city council's decision.
Section 2. Sections 2.1200, 2.1205, 2.1210, 2.1215, 2.1220, 2.1225, 2.1230,
2.1240, 2.1245, 2.1250, AND 2.1255 of the Eugene Code, 1971 are repealed.
Section 3. The findings attached as Exhibit A hereto are adopted in support of
this action.
Section 4. The City Recorder, at the request of, or with the concurrence of the
City Attorney, is authorized to administratively correct any reference errors contained
herein or in other provisions of the Eugene Code, 1971, to the provisions added,
amended or repealed herein.
Section 5, The revisions contained herein are based on, and consistent with the
Oregon Public Contracting Code (ORS Chapters 279A, 279B and 279C), which will
become effective on March 1, 2005. The Council finds that it is necessary for the
preservation of the public health, welfare and safety that this Ordinance also become
effective on that date and therefore, an emergency is declared to exist, and this
Ordinance shall become effective on March 1,2005.
Passed by the City Council this Approved by the Mayor this
:
28th day of February, 2005 _~.{*%t.~day of March, 2005
"~itgRecorder /Mayor
O~inance-]5
EXHIBIT A
FINDINGS IN SUPPORT OF ORDINANCE NO. 20341
ADOPTING PUBLIC CONTRACTING CODE PROVISIONS
ORS 279B.085 and 279C.335 authorize the City Council, upon adoption of appropriate findings,
to establish special selection, evaluation and award procedures for, or exempt from competition,
the award of a specific contract or classes of contracts.
Pursuant to that authority the City Council has, after a public hearing thereon, adopted Ordinance
No. 20341, wlfich establishes classes of contracts and the solicitation methods for their award, as
set forth in Section 2.1430 of the Eugene Code, 1971, together with the following specific
findings in support thereof, or a determination that no findings are required.
No Findings Rertuired:
The City Council is not required to adopt findings with respect to the solicitation methods and
awards of the classes of contracts set forth in the following provisions of the Eugene Code, 1971
("EC"):
EC 2,1430(1) -Purchases from Nonprofit Agencies for Disabled Individuals.;
EC 2.1430(2)(a) - Any public improvement.;
EC 2.1430(2)(d) - Public improvements up to $5,000.;
EC 2.1430(,3) - Personal Services Contracts.;
EC 2.1430(5) - Contracts for Goods and Services.;
EC 2.1430(6) - Contracts Subject to Award at Purchasing Agent's Discretion. (b) Amendments.
(d) Contracts up to $5,000.
0) Insurance,;
EC 2.1430(7) - Contracts Required by Emergency Circumstances.;
EC 2.1430(8) - Federal Purchasing Programs.; and
EC 2.1430(9) - Cooperative Procurement Contracts.
as the above provisions constitute a restatement of State law.
In addition, no findings are required for EC 2,1430(6)(k) - Renewals, as that section does not
reflect an exemption.
S~ecific Finding[s for Public Improvement Exemptions, The City Council approves the
specific findings for the exemptions for each class of public improvemems established in the
provisions described below and also finds that the establishment of each class of contracts and
the methods approved for their award:
Is unlikely to encourage favoritism in the awarding of public improvement
contracts or substantially diminish competition for public improvement contracts;
and
Ordinance ~ 16
2. The awarding of public improvement contracts under each exemption will result
in substantial cost savings to the city.
EC 2.1430(2)(b) - Non-transportation public improvements np to $100,000, and EC
2.1430(2)(c) Transportation public improvements up to $50,000.
Alternate Award Process. The informal solicitation procedure for this class of contracts
requires the solicitation agent to obtain at least 3 written price quotes. Contracts will be
awarded based on price.
Cost Savings and Other Benefits. The informal solicitation process provides the
fbllowing benefits:
1.Reduction in staff time.
2. Reduced bidding expenditm'e.
3. Elimination of bid bond requirement and small cost of quote preparation
as compared to bid preparation will result in lower quotes.
4. Flexibility in timing of solicitations will allow solicitation to be made
during construction season when projects can be used as fill-in projects for
otherwise busy contractors. This should result in lower pricing
contractors.
Effect on Competition. Requires competition by award based on price. The size of the
job makes is unlikely that contractors from outside the local area would submit bids if the
job was advertised.
No Favoritism. Award to lowest of 3 or more quotes, prevents selection based on
favoritism. Willingness of any pa~nticular contractor to submit a quote will depend on the
contractoFs schedule at the time of the solicitation. It is unlikely that the same contractor
will be able to submit a quote fbr every solicitation. The ability of the city to obtain
quotes for projects with short lead times will depend on the schedules of contractors and
therefore the city will not be able to obtain quotes f?om the same contractors over and
over again.
Other Factors. Section 132 of Chapter 794, Oregon Laws, 2003 created this class of
contracts as a special award class under the Oregon Public Contracting Code~ however,
the class expires on June 30, 2009. By adopting this classification as a contract review
board exemption, the statutory classification will be protected from automatic repeal.
EC 2~1430(2)(e) - City funded privately-constructed public improvements.
Alternate Award Process. Not applicable. City does not award contract.
Cost Savings and Other Benefits. 1. No mobilization cost.
2. Reduced engineering and design costs - ties into existing project.
3.No solicitation expense.
Ordinance- t7
4. Allows city to take advantage of private funding and development
activities to enhance public infrastructure.
Effect on Competition. None. The contract is awarded by private business owner who
has personal motivation to minimize cost of improvements.
No Favoritism. City does not select general contractor. General contractor is selected
by developer.
Other Factors. Initiated by private entities rather than city. City responds to
opportunity.
EC 2.1430(4)(a~ Hybrid Contracts - Design/build and CM/GC contracts.
Alternate Award Process. Requires the use of formal, advertised request for proposals.
Cost Savings and Other Benefits. Award of Desig~gBuild or CM/GC contract to the
lowest bidder under an invitation to bid would dramatically increase the risk of
unsuccessfi~I projects, waste and improper expenditure of public t~hnds. Use of the RFP
process is necessary to allow staff to evaluate the unique qualifications of the
Design/Build team which will include personal service providers as well as construction
experts. In the case of CM/GC contracts, the construction manager must provide design
advice and the experience, management skills and efficiency of the construction manager
are essential qtnalities than cannot be evaluated on a price basis.
Effect on Competition. Requires complete and open competition to the same pool of
potential contractors that would be qualified to respond to an invitation to bid.
No Favoritism. Requires complete and open competition to the same pool of potential
contractors that would be qualified to respond to an in-vitation to bid.
Other Factors, The city has never awarded a desi=ozffbuild or CM/GC contract under an
invitation to bid. The city is not aware of any other state or federal agency that awards
design/build or CM/GC contracts under an invitation m bid.
EC 2.1430(4)(b) - Hybrid Contracts - Energy savings performance contracts.
Alternate Award Process. Requires the use of }brmal, advertised request for proposals.
Cost Savings and Other Benefits. Energy savings performance contracts will include
scientific analysis, engineering and design services, cost-benefit analysis, construction
services and subsequent scientific testing and monitoring services. ESP projects may be
phased in over several years. Award of ESPCs to the lowest bidder under an invitation to
bid would impair the city's ability to evaluate the skill~ experience and educational
qualifications of the contractor's team and dramatically increase the risk of unsuccessful
projects, waste and improper expenditure of public funds.
Ordinance- 18
Effect on Competition. Requires complete and open competition to the same pool of
potential contractors that would be qualified to respond to an invitation to bid.
No Favoritism. Requires complete and open competition to the same pool of potential
contractors that would be qualified to respond to an invitation to bid.
Other Factors~ The model rules adopted by the Attorney General for this class of
contracts require evaluation under a request for proposals due to the heavy scientific
analysis and design requirements tbr this class of contracts.
Specific Findings for Sl~ecial Classes and Methods of Award for Contracts Other Than
Public Improvements. The City Council approves the specific findings for the establishment of
special solicitation methods for the classes of public contracts described below and also finds
that the establishment of each class of contracts and the methods approved for their award:
l s Is unlikely to encourage favoritism in the awarding of public contracts or
substantially diminish competition for public contracts; and
2. The awarding of public contracts under the exemption will result in substantial
cost savings to the city.
EC 2.1430(6)(a) - Contracts Subject to Award at Purchasing Agent's Discretion. -
Advertising~
Alternate Award Process. Solicitation agenfs discretion. The process selected may be
competitive or non-competitive.
Cost Savings and Other Benefits, Size of and frequency of average advertisement
(including all notices required to be published by city) does not justify the cost of
solicitation. Per/od of time from recognition of need to advertise until advertising date is
too short to issue solicitation.
Effect on Competition. The potential market is limited because not all advertisers work
in every market. Choice of advertising medium is somewhat price sensitive, but
primarily driven by location and size of circulation compared to city's target audience.
No Favoritism. Not applicable due to the lack of competitors and specialized
contracting needs.
Other Factors, This exemption was in the city's prior contracting code.
EC 2,1430(6)(c) - Contracts Subject to Award at Purchasing Agent's Discretion. - (c)
Animals.
Alternate Award Process. Solicitation agent's discretion~
Ordinance - 19
Cost Savings and Other Benefits. Each animal is unique. An officeFs life may depend
on the inherent personality traits as well as training of the animal. Price is not the most
important factor.
Effect on Competition. The extremely personal nature of the relationship between the
animals and staff assure that animals will be carefully evaluated for the city's needs,
No Favoritism, Not applicable due to the lack of competitors and specialized
contracting needs.
Other Factors, This exemption was in the city's prior contracting code.
EC 2,1430(6)(e) - Contracts Subject to Award at Purchasing Agent's Discretion, (e)
Copyrighted and library materials.
Alternate Award Process, Solicitation agent's discretion.
Cost Savings and Other Benefits. Necessary to allow city to acquire special needs
products that are unique.
Effect on Competition. None, There is no competitive market for a unique product.
Library products are generally acquired from a sole-source copyright holder or as used
property or by donation.
No Favoritism, Not applicable due to the lack of competitors and specialized
contracting needs.
Other Factors, This exemption was in the city's prior contracting code.
EC 2,1430(6)(f) - Contracts Subject to Award at Purchasing Agent's Discretion. (~)
Equipment Repair,
Alternate Award Process, Solicitation agent's discretion.
Cost Savings and Other Benefits.
1. Pre-contract pricing is impossible.
2. Solicitation agent has discretion to decide whether costs of solicitation are
justified in relationship to size of contract and availability of skilled
technicians to repair the specific equipment.
Delay required for solicitation would impair city's ability to respond to
equipment breakdown and be injurious to the public interest.
4. Experience with contractor is crucial because reliability over the course of
several projects is important.
Effect on Cornpetition. Allows contractor to be selected based on ability to provide
accurate, reliable and fast service.
Ordinance - 20
Effect on Favoritism. Favoritism will not be greater than if statutory request for
proposals process is used.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(6)(g) - Contracts Subject to Award at Purchasing Agent's Discretion. (g) Goods
for resale. Contracts ~:br goods purchased for resale to consumers.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Allows unique goods to be purchased for City-
operated specialty concessions. Generates revenues that would not be available using
standard competitive processes that are successful when goods are fungible.
Effect on Competition. Enhances competition by stimulating development of unique
goods.
No Favoritism~ Too much variation in selection to allow favoritism.
Other Factors. This exemption was in the city's prior contracting code. It is intended to
allow a buyer for a City-operated souvenir or gift shop (e.g., Hutt Center or library or
other consumer-oriented enterprise) to make purchases of items for resale based on
highly subjective decisions. Product innovation, fashion trends and spot-market
availability, such as trade-show purchasing, is crucial to the success of resale operation.
EC 2.1430(6)(h) - Contracts Subject to Award at Purchasing Agent's Discretion. (h)
Government regulated items.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Expense of solicitation would be wasted.
Effect on Competition. No competitive market exists.
Effect on Favoritism. None. Choice is limited by governmental authority.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(6)(j) - Contracts Subject to Award at Purchasing Agent's Discretiom (j) Non-
owned property.
Alternate Award Process. Other state laws govern disposal process in most cases.
Cost Savings and Other Benefits. Solicitation would be urmecessary expense.
Ordinance - 21
Effect on Competition. None.
Effect on Favoritism. None
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(6)(1) - Contracts Subject to Award at Purchasing Agent's Discretion. (l) Sole
source contracts.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Avoids um~ecessary expenditure.
Effect on Competition. No competitive market exists.
Effect on Favoritism. Not applicable where there is only one source.
Other Factors. This exemption was in the city's prior contracting code.
EC 2A430(6)(m) - Contracts Subject to Award at Purchasing Agent's Discretion. (m)
Sponsorship agreements.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. This exempt/on allows the city to respond to
unsolicited proposals for revenue opportunities that would otherwise be un'known, or
unavailable.
Effect on Competition.
1. Mandatory open competition likely to discourage creative proposals from
sponsors.
2. Sponsorship often results fi'om the match between a unique attribute of a
city event or asset and unique characteristics of the sponsor for which no
competitive market exists.
Effect on Favoritism. Minimal.
EC 2.1430(6)(n) - Contracts Subject to Award at Purchasing Agent's Discretion. (n}
Structures,
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. 1. Cost of demolition of structure often exceeds value of structure.
2. Destruction is often least costly method of disposal.
Ordinance - 22
3. Fast removal of structure often required to prepare site for public
improvement project. Time required to conduct solicitation could result in
costly delays in public improvement project.
4. Most efficient method of disposal may be incorporation of demolition into
public improvement project.
5. Allowing solicitation agent discretion to solici~r sale or removal necessary
to avoid unnecessary solicitation expenditures and project delays.
Effect on Competition. Competitive market may not exist.
Effect on Favoritism. Unique, non-repetitive nature of transaction does not provide
framework for favoritism.
Other Factors. A similar exemption was in the city's prior contracting code.
EC 2.1430(6)(o) - Contracts Subject to Award at Purchasing Agent's Discretion.
Temporary extensions or renewals.
Alternate Award Process. Renewal. No selection.
Cost Savings and Other Benefits. Gives staff time to prepare for competitive
sol/citation when existing contracts expire without notice by staff. Deals with
administrative errors. Protects the public interest against employee error.
Effect on Competition. Delays competition by not more than one year.
Effect on Favoritism. No impact. At expiration of temporary period, standard
competitive procedure will apply.
EC 2.1430(6)(p) - Contracts Subject to Award at Purchasing Agent's Discretion. (p)
Temporary use of city-owned property.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Allows city to respond to unsolicited proposals for
unique revenue opportunities.
Effect on Co-mpetition. None. No competitive market..
Effect on Favoritism. No impact. Responds to unique opportunities.
EC 2.1430(6)(q) - Contracts Subject to Award at Purchasing Agent's Discretion. (q) Used
property.
Alternate Award Process. Renewal. No selection.
Ordinance - 23
Cost Savings and Other Benefits. Allows city to take advantage of unique opportunity
to require needed good and services for discounted prices.
Effect on Competition. No impact. Responds to unique opportunities.
Effect on Favoritism. No impact. Responds to unique opportunities.
EC 2.1430(6)(r) - Contracts Subject to Award at Purchasing Agent's Discretion. (r)
Utilities.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Avoids unnecessary solicitation costs.
Effect on Competition. No impact. Very narrow market. Subject to governmental and
price regulation.
Effect on Favoritism. No impact. Very narrow market.
EC 2.1430(10) - Surplus Property.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits.
1. Avoids unnecessary solicitation expense by allowing solicitation agent to
determine whether cost of solicitation is justified by value of su¢lus
property.
2. Allows purchasing agent to establish programs for donation to charitable
organizations.
3. Allows purchasing agent to develop rules to enhance oppor~umties to
provide needed low-income housing.
Effect on Competition. No ~mpact. Responds to unique opportunities.
Effect on Favoritism. No ~mpact. Responds to unique opportunities.
Other Factors. Variations in the type, quantity, quality and opportunities for recycling
of surplus property are to large to have this class of contracts governed by a single
solicitation method
EC 2.1430(11) - Concession Agreements.
Alternate Award Process. Purchasing agent to adopt rules for award~ as in the case of
personal service contracts.
Ordinance - 24
Cost Savings and Other Benefits. Allows city to take advantage of unique revenue
opportunities.
Effect on Competition. Responds to umque opportunities for which the number of
competitors may range from none to many.
Effect on Favoritism. No impact. Responds to unique opportunities.
Other Factors. Not a contract fbr the acquisition or disposal of good, or services or
public improvements. Most similar to personal services contract because the quality of
the concession may be more important that price fhctors. Variation in t~yloes and sizes of
concession opportunities is to great to provide a single method of solicitation. Statutory
public contracting requirements may not apply. May not be a public contract. Most
similar to personal services contract. Findings may not be required.
Ordinance - 25
COUNCIL ORDINANCE NUMBER 20341
COUNCIL BILL NUMBER 4896
ORDINANCE CONCERNING PUBLIC
CONTRACTING; ADDING SECTIONS
2~1405, 2.1410, 2.t415, 2.1420, 2.1425, 2.1430,
2.1435, 2.1440, 2.1445, AND 2.1450 TO THE
EUGENE CODE, 1971; REPE~J. ING SECTIONS
2~1200, 2.1205~ 2~1210, 2.1215~ 2.1220, 2.1225,
2.1230, 2.1240, 2.1245, 2.1250, A~ID 2.1255 OF
THAT CODE; DECLARING AN EMERGENCY; AND
PROVIDING AN EFFECTIVE DATE.
ADOPTED: February 28, 2005
PASSED: 7/0
REJECTED:
OPPOSED:
ABSENT: Pap~
EFFECTIVE: Immediately upor~ [~layor's signature